A Framework For Copyright Reform

from the some-starting-points dept

I watched a large part of the House Subcommittee on Intellectual Property's first hearing on copyright reform, and came away somewhat disappointed. While the panelists presented a variety of interesting viewpoints and worked hard to highlight areas of agreement, many of the Congressional Representatives were clearly confused about the law, the Constitution and the nature of the debate itself. I came away with a few key concerns, but also with some ideas for a framework that any debate on copyright should necessarily take. First up, the concerns:

Too many Representatives flat out mis-stated what the Constitution says. They said that the copyright is "guaranteed by the Constitution" or that their Congressional mandate is to protect science and art. Neither is true. The Copyright Clause of the Constitution grants Congress the power to issue "exclusive rights" for the sake of promoting the progress of science and the useful arts. That is, it was never about "protecting" but about "promoting the progress." Those are very different things. For that matter, it had nothing to do with creative works, for the most part. If we go by the originalist mandate, "science" was the part that copyright was about, and it meant "learning." The framers of the Constitution were focused on promoting learning and education via copyright, not a specific entertainment business. That it does that now is fine, but don't claim that the Constitution says that Congress must "protect" the entertainment industry. Because it says no such thing. After all, that same section grants Congress the power to grant letters of marque to privateering ships to seize foreign ships. If copyright is guaranteed by the Constitution, then so would the right to demand your right to a letter of marque.

Too many representatives continued to set this up as a battle between "content creators" and "the tech industry." This is dangerously misleading. In fact, at one point, Rep. Deutch flat out said that any copyright reform must carefully benefit "creators and the tech industry, as if those were the only two stakeholders. The real stakeholders of copyright law, however, have always been the public, who were barely mentioned at all in the hearing. Or, when they were mentioned, it was often with the somewhat disparaging term "users."

Finally, the myth that "everyone just wants stuff for free" was brought up a few times, in an effort to defend the idea that greater enforcement is a necessity. Except, that's not true. As we've seen over and over again, consumers are actually spending more today on entertainment than ever before, according to the Bureau of Labor Statistics. And tons of studies have shown that the biggest infringers also tend to be the biggest spenders. You don't make good policy based on catchy myths, and this one is a myth. It should be stricken from the debate as false. And, I won't even bother with the one comment from Rep. Poe that "copyright won the cold war." Where do we get these people?

Given all that, if we wanted to look honestly at copyright reform, it needs to start from a few basic principles. Here are a few preliminary thoughts on a potential framework for discussing these things.

Pretty much everyone is both a content creator and a content consumer. Over and over again we heard about concerns of certain creators as if they were a separate class of people unrelated to the wider public. That's silly. Especially as we have copyright law today -- in which every piece of creative content is immediately covered by copyright at the moment the expression is set in fixed form -- we are all creators. Nearly every email you write is probably covered by copyright. Every creator is also a consumer of content, and that includes professional creators. Professional content creation often involves building off of the influences of other works. We should support that as well. Otherwise, we begin to treat copyright as a sort of welfare program for professional creators, which is never what it was intended to be.

Technology is just a tool. It is neither a competitor to, nor an enemy of, content creators. With so many Representatives setting up the debate as "content vs. technology," we start to go down a very dangerous and distorted path that has little to do with reality. As a tool, technology certainly can create challenges for existing and traditional business models, but also tremendous opportunity. Look at the success of platforms like Kickstarter today. Would anyone seriously argue that the "technology" company Kickstarter is "anti" creator? Similarly, we're seeing more and more artists succeed by embracing new technology platforms that enable them to do amazing things: Bandcamp, TopSpin, BandZoogle, ReverbNation, SongKick, Dropbox, SoundCloud, Netflix, YouTube, Facebook, Twitter, HumbleBundle -- and many, many, many more. The list literally goes on and on and on. These are the tools that so many content creators are embracing today to help them to be better able to create, to promote, to distribute, to connect and to monetize their works than ever before. To argue that this is tech vs. content, when the tech companies seem to be handing content creators the most useful tools they've ever had to be successful, seems ridiculous.

Every legislative choice has costs and benefits. Too often, it seems like those pushing a certain proposal like to only look at one side of that equation. If we're to have an effective debate over copyright reform, it should include an upfront look at the costs and the benefits, the conditions and the consequences of various decisions across the board on the public. The purpose of copyright law, explicitly, is to promote the progress. We should be weighing carefully whether or not each change really would promote progress of science and the useful arts.

Decisions need to be made based on empirical data. As we've discussed in the past, historically, copyright reform discussions have been almost entirely faith-based. This is why the claims of "everyone just wants stuff for free" are so concerning," since the data suggests that's not even close to true. Given the recent call for objective research that would be useful in the copyright debate, by the US National Research Council, I'm hopeful that we'll actually begin to see some useful data for this discussion. Hopefully those in Congress will actually pay attention to the data, rather than continue to insist that blatantly false claims must be true.

Finally, and most importantly, the focus needs to remain on promoting the progress of science and the useful arts. It's not about "protecting" any industry or any class. It's about what most helps to promote overall progress. Each proposal should be judged on that standard.

While it may be difficult, I think that if any discussion on copyright reform begins with those basic principles, it could end up being quite useful and informative.